DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 317-12
27 September 2012
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, United
States Code, section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 26 September 2012. The names and votes of the
members of the panel will be furnished upon request. Your
allegations of error and injustice were reviewed in accordance
with administrative regulations and procedures applicable to the
proceedings of this Board. Documentary material considered by
the Board consisted of your application, together with all
material submitted in support thereof, your naval record, and
applicable statutes, regulations, and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Marine Corps and began a period of active
duty on 15 March 1973 at age 17. You received nonjudicial
punishment (NJP) on two occasions for unauthorized absence (UA)
from your unit for a two day period, failure to go to your
appointed place of duty and insubordinate conduct toward a
superior noncommissioned officer. On 24 September 1974 you were
convicted by summary court-martial (SCM) of UA from your unit
for a period of 111 days. During this period of UA you were
arrested, tried and convicted in Winnebago County, Illinois, of
unlawful intoxication, contributing to the delinquency of minor
and unlawful possession of marijuana. On 5 October 1974, you
were again in a UA status from your unit until you were
apprehended by the Federal Bureau of Investigation (FBI) on 20
November 1975, a period of 411 days. During this period of UA
you were again arrested in Winnebago County, Illinois, and
convicted of theft. You served your sentence of confinement and
were returned to military control. On 18 December 1974, you
made a written request for discharge for the good of service to
avoid trial by court-martial for the foregoing period of UA.
Prior to submitting this request you conferred with a qualified
military lawyer at which time you were advised of your rights
and warned of the probable adverse consequences of accepting
such a discharge. Your request was granted and the commanding
officer directed your other than honorable (OTH) discharge. As
a result of this action, you were spared the stigma of a court-
martial conviction and the potential penalties of a punitive
discharge and confinement at hard labor. On 5 January 1976, you
were discharged under OTH conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth and overall record of service. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your misconduct that resulted in two NUJPs, a SCM, two civil
convictions, periods of UA totaling over one year and four
months and request for discharge. The Board believed that
considerable clemency was extended to you when your request for
discharge to avoid trial by court-martial was approved.
Further, the Board concluded that you received the benefit of
your bargain with the Marine Corps when your request for
discharge was granted and should not be permitted to change it
now. Accordingly, your application has been denied. The names
and votes of the members of the panel will be furnished upon
request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Weasley)
W. DEAN PF
Executive r or
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